Mazzanobile v. McCaffrey

279 A.D. 861, 110 N.Y.S.2d 378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1952
• Status: Published

Opinions

Per Curiam.

Plaintiff, operator of a stand abutting premises 300 East 26th Street, New York, appeals from an order denying her motion for a preliminary injunction or stay pending determination of the action.

The stand in question has been at the location herein for about fifty years; plaintiff has had continuous use of it for eighteen years including the right to use and the actual use of part of the basement of the building in question for storage purposes in connection with the stand; pipes extend from the building and furnish heat and water; the abutting owner has been collecting rent from plaintiff as a tenant on a month to month basis; and the tenant offered to pay the rent in September, 1951, but defendant, Cottone, the abutting owner, refused to accept it.

In view of the length of time the stand has been operated in the location in question, no harm will result to defendants from a stay pending trial but denial of a stay will result in irreparable injury to plaintiff summarily depriving her of the stand and the business without a hearing.

In view of the unusual state of facts disclosed and on condition that plaintiff offers to pay all rent accrued, the order appealed from should be reversed, with one bill of $20 costs and disbursements to plaintiff-appellant and the motion granted pending trial and determination of all issues in the action. Settle order.